Varcity Solutions Pty Ltd v Gulliver; Varcity Solutions Pty Ltd v Jagbo Pty Ltd

1. [1]

   The plaintiffs in these proceedings are Varcity Solutions Pty Ltd and Paidonexchange Pty Ltd. The defendant is Ms Jennifer Adriana Gulliver. I will call these proceedings the “caveat proceedings” to distinguish them from related proceedings to which reference will be made below.

2. [2]

   The question for determination in the caveat proceedings is whether or not the Court should order the withdrawal by the plaintiffs of a caveat lodged by the plaintiffs against the title to a residential property at Riverview in this State that is solely owned by Ms Gulliver.

The caveat

1. [3]

   The caveat was lodged by the plaintiffs to protect interests in the Riverview property to which they claim to be entitled under two loan agreements. The first is described as a loan agreement dated 4 November 2016 between the first plaintiff and a company called Jagbo Pty Ltd (the debtor) as borrower, and Ms Gulliver’s husband, Mr Raymond John Gulliver, as guarantor.

2. [4]

   The second loan agreement is described as a factoring agreement, dated on or about 10 February 2017, between the second plaintiff, the debtor and Mr Gulliver, again as guarantor.

3. [5]

   It will be convenient to note that the plaintiffs admitted at the hearing that the second loan agreement was in fact dated 24 August 2015 and not 10 February 2017.

4. [6]

   The caveat described the interest claimed as having arisen by virtue of the two agreements referred to above.

5. [7]

   The caveat described the facts giving rise to the interest in the following terms:

Relief claimed in the summons

1. [8]

   The plaintiffs filed their summons commencing the proceedings on 18 March 2019, following the defendant serving a lapsing notice on them.

2. [9]

   The final relief claimed in the summons was in the following terms:

3. [10]

   The plaintiffs sought the following interlocutory relief:

Related debt proceedings

1. [11]

   The plaintiffs commenced separate proceedings by statement of claim filed on 1 March 2019. The debtor is the first defendant. It is a company controlled by Ms Gulliver’s husband. Mr Gulliver is the second defendant. Ms Gulliver is the third defendant. I will call these proceedings the “debt proceedings”.

2. [12]

   By the first two prayers for relief in the statement of claim, the plaintiffs claimed declarations in the alternative that Mr Gulliver holds an interest in the Riverview property "pursuant to a resulting trust" or “pursuant to a constructive trust".

3. [13]

   Prayer 3 in the statement of claim is in the following terms:

4. [14]

   By prayer 4, the first plaintiff sought judgment against the debtor and Mr Gulliver as guarantor in the sum of $61,074 plus interest.

5. [15]

   The second plaintiff, by prayer 5, sought judgment against the debtor and Mr Gulliver as guarantor in the sum of $255,131.27 plus interest.

6. [16]

   Thus, while in the summons in the caveat proceedings the plaintiffs have sought a declaration that Ms Gulliver holds an interest in the Riverview property on a resulting trust for her husband, in the statement of claim in the debt proceedings the interest is claimed to have been based upon either a resulting trust or a constructive trust.

7. [17]

   It will not be necessary for the purpose of these reasons to set out in detail the allegations of fact in the statement of claim in the debt proceedings relevant to the debt claims against the debtor or the guarantee claims against Mr Gulliver. The hearing was conducted upon the basis that the plaintiffs probably have a good claim in debt against the debtor and against Mr Gulliver under the guarantee.

8. [18]

   The statement of claim contained the following allegations concerning the creation of the resulting or constructive trust in favour of Mr Gulliver over Ms Gulliver’s Riverview property:

9. [19]

   The statement of claim is devoid of any particularity.

10. [20]

    While a claim is made in par 50 that Mr Gulliver has an equitable interest in the Riverview property by reason of a resulting trust formed at the time of purchase through the use of joint funds, there is no specification of the nature of the joint funds of Ms Gulliver and her husband alleged to have been used in the purchase of the Riverview property.

11. [21]

    This is significant, because, by the end of the hearing, there continued to be no identification by the plaintiffs of how any joint funds were applied in the purchase of the Riverview property. That allegation is contrary to the only evidence that was before the Court. I will refer to this evidence below.

12. [22]

    There are also no particulars given of the manner in which the alleged constructive trust is claimed by the plaintiffs to become imposed on the Riverview property.

13. [23]

    Furthermore, the statement of claim is not drafted in a way that makes clear the nature of the constructive trust alleged by the plaintiffs. I will consider the relevant principles more fully below. For the present, it is to be noted that there is no indication of whether the constructive trust is said to be a common intention constructive trust, or whether it is the type of constructive trust that may arise on the unexpected termination of a joint endeavour between the parties to a relationship.

14. [24]

    Strictly, the plaintiffs only allege that the constructive trust arose because Mr Gulliver applied funds obtained through the loans made by the plaintiffs to the maintenance of the Riverview property in the manner specified in par 51, or alternatively, the funds that were applied were from the revenues of the debtor or Mr Gulliver.

15. [25]

    The final allegation made by the plaintiffs asserts a principle that a party to a marriage, by virtue of the marriage, will build-up an equitable entitlement to a property owned by the other party to the marriage.

History of the two proceedings

1. [26]

   When the caveat proceedings were commenced before Kunc J on 18 March 2019, his Honour extended the caveat up to 20 March 2019, and, on 20 March 2019, his Honour made an order extending the caveat until further order of the Court.

2. [27]

   Both the caveat proceedings and the debt proceedings have been case managed in the Real Property List by Darke J.

3. [28]

   Darke J gave leave to the plaintiffs to file a notice of motion seeking default or summary judgment against the debtor and Mr Gulliver, and such a notice of motion was filed on 18 March 2020.

4. [29]

   On 12 June 2020, Darke J made orders that each proceeding, including the plaintiffs' notice of motion in the debt proceeding, be set down for hearing before me on 16 October 2020, to be heard concurrently with the other proceeding. His Honour made the usual order for hearing in accordance with the Real Property List Practice Note.

5. [30]

   The plaintiffs changed their solicitor, and, on 30 September 2020, the plaintiffs' present solicitor filed a notice of change of solicitor. It is now apparent that the change in the plaintiffs' solicitor has put in train an unfortunate chain of events that led to a misunderstanding as to the matter that was to be heard by the Court on 16 October 2020.

6. [31]

   Not only were the orders made by Darke J on 16 October 2020 unambiguous, but, on 6 October 2020, my associate sent an email to the solicitors for the plaintiffs and Mrs Gulliver that stated that both matters were listed for hearing before me on Friday, 16 October 2020.

7. [32]

   At the hearing on 16 October 2020, the plaintiffs and the defendant were represented by counsel. The proceedings were called outside court, and there was no appearance for the debtor or Mr Gulliver.

8. [33]

   There was evidence of service of the statement of claim in the debt proceedings on both the debtor and Mr Gulliver. Mr Gulliver was clearly aware of the proceedings, because he had sent a number of communications to the Registry asserting that he was medically unable to come to court.

9. [34]

   Counsel for the plaintiffs informed the Court that it was the plaintiffs' understanding that the only matter for determination by the Court was whether the caveat should be further extended, or whether an order should be made for the withdrawal of the caveat.

10. [35]

    The Court was informed by counsel for Ms Gulliver that she understood that both proceedings were before the Court for final hearing, and Ms Gulliver was ready to proceed with both matters.

11. [36]

    Counsel for the plaintiffs advised the Court that no evidence had been served by the plaintiffs to prove their cases against all three defendants in the debt proceedings, and he acknowledged that, if the Court proceeded to hear the debt proceedings, the plaintiffs would necessarily fail.

12. [37]

    The plaintiffs were not even ready to proceed to obtain default or summary judgment on their claims against the debtor and Mr Gulliver.

13. [38]

    The Court initially accepted that proposition, although, in the course of the hearing, my staff discovered that the plaintiffs had filed an affidavit of an officer of the plaintiffs that contained the evidence required to proceed on the notice of motion for default judgment against the debtor and Mr Gulliver.

14. [39]

    After some argument and a number of adjournments, file notes were tendered that were prepared by the plaintiffs' solicitor of a telephone discussion between the solicitor and Ms Gulliver’s solicitor on 6 October 2020, which satisfied me that, reasonably or not, the plaintiffs' solicitor genuinely believed, at the end of the conversation, that the only matter that would be dealt with by the Court on 16 October 2020 would be the issue of whether or not the caveat should be further extended or withdrawn.

15. [40]

    I ruled in the circumstances that the Court would only deal with that issue on the day.

16. [41]

    I indicated that I would make an order that the plaintiffs pay Ms Gulliver’s costs, insofar as they were increased by the failure of the plaintiffs to be able to prosecute the hearing in the debt proceedings on 16 October 2020, on the indemnity basis.

17. [42]

    I also advised the parties that they should confer and submit to my Associate draft short minutes of order, to ensure that, within a short space of time, the plaintiffs filed an amended statement of claim in the debt proceedings to specify the basis of the trusts alleged in favour of Mr Gulliver, with proper particulars of the facts supporting those claims. The case management orders will also ensure that the debt proceedings are ready before the end of term to be fixed for hearing at the earliest date possible.

Issue for determination

1. [43]

   In these circumstances, I will now address the question of whether the Court should make an order that the plaintiffs withdraw the caveat. If no order is made, then the caveat will continue to be extended until further order under the order already made by Kunc J.

2. [44]

   The plaintiffs accepted that, on an application such as the present, the plaintiffs bore the burden of establishing that the caveat should be further extended.

3. [45]

   It was uncontroversial that the further extension of the caveat depends upon the plaintiffs establishing that, on the interlocutory evidence, there is a serious question to be tried that Mr Gulliver has the equitable interest in the Riverview property alleged by the plaintiffs, that the plaintiffs have a charge over that equitable interest, and that the balance of convenience favours the continued extension of the caveat: see Peters v Lithgow Forge Pty Ltd [2010] NSWSC 283 at [35]-[36]; and Capital Securities XVII Pty Ltd v Anna’s Garden Pty Ltd [2019] NSWSC 1256 at [6].

The evidence

1. [46]

   In the defence filed by Ms Gulliver in the debt proceedings on 20 November 2019, she substantially denied the allegations pleaded by the plaintiffs, Although, in par 7, she admitted that Mr Gulliver "paid some rates in respect of the property", she denied that "he applied any funds to the maintenance of the property in respect of mortgage, insurances, renovations, outgoings or otherwise". Ms Gulliver denied that Mr Gulliver had any equitable interest in the property from any constructive trust or by virtue of his marriage to Ms Gulliver.

2. [47]

   Ms Gulliver gave evidence by her affidavit sworn on 20 June 2019.

3. [48]

   Ms Gulliver said that she purchased the Riverview property by settlement taking place on 4 May 2012 for a price of $1,500,000 and the expenses of the purchase, with the assistance of a first mortgage from the ANZ in the amount of $1,349,590. Ms Gulliver explained that she was employed by Qantas for 24 years, and she used her redundancy package and her superannuation to purchase the Riverview property in her name alone.

4. [49]

   Ms Gulliver said that she purchased the Riverview property in her name alone because she was concerned about putting the property in joint names with her husband, as he had not exhibited sufficient responsibility or judgment with money, and Ms Gulliver was anxious not to co-mingle her money and her husband's money.

5. [50]

   Ms Gulliver re-mortgaged the Riverview property on 31 January 2017. The mortgage to the ANZ was discharged and a new advance of $1,476,000 was taken from a new lender on a first mortgage over the Riverview property.

6. [51]

   Ms Gulliver said in par 8 of her affidavit:

7. [52]

   Ms Gulliver gave evidence of her subsequent employment with two different employers at a substantial salary and said: "… and this was sufficient to meet my repayments and make the payments associated with my lifestyle and that of my husband and children".

8. [53]

   Ms Gulliver said in par 10: "… I had no assistance from Raymond in relation to either my living expenses or repayments on the mortgage".

9. [54]

   Ms Gulliver also said, in par 10, that it was her practice to keep her money and her assets separate from those of her husband. She said that she did not know anything in regard to the loans made by the plaintiffs. Ms Gulliver signed nothing with either of the plaintiffs in relation to the money lent to the debtor or her husband.

10. [55]

    Finally, Ms Gulliver said in par 13:

11. [56]

    I will now move to a consideration of the evidence tendered by the plaintiffs.

12. [57]

    The factoring agreement dated 24 August 2015, between the second plaintiff and the debtor, contained in clause 13.8 a term whereby the debtor and the guarantor charged in favour of the second plaintiff "all of their respective right, title and interest in any real property and/or personal property and assets". By clause 13.7, both the debtor and the guarantor consented to the second plaintiff lodging a caveat to protect the charge. By clause 13.4, it was agreed that the charge was in addition to any other security interest granted in favour of the second defendant.

13. [58]

    The first defendant made loans to the debtor under a number of loan agreements, all of which were in identical terms. The provisions of the loan agreement included:

14. [59]

    For the purposes of the application, the defendant did not argue that the charging provisions in respect of other property did not cover any beneficial interest in the Riverview property held by Mr Gulliver, if such beneficial interest existed. Ms Gulliver’s case was that there was no evidence that any such beneficial interest existed, and, in the circumstances, the balance of convenience favoured the making of an order for the withdrawal of the caveat.

15. [60]

    Evidence was given on behalf of the plaintiffs by Mark Andrew Glover Smith who, at relevant times, was a director of the plaintiffs.

16. [61]

    Mr Smith caused the plaintiffs to make the loans to the debtor on the guarantee of the husband following conversations with the husband.

17. [62]

    In relation to the factoring agreement between the second plaintiff and the debtor, Mr Smith said in his 16 May 2019 affidavit:

18. [63]

    The aspects of this conversation in which the husband made claims to have an interest in the Riverview property, and the facts that gave rise to that interest, were only admitted as evidence that the statements had been made, and not as proof of the facts asserted.

19. [64]

    In relation to the loans made to the debtor by the first plaintiff, Mr Smith gave the following evidence:

20. [65]

    The husband's statement about his interest in the Riverview property was admitted with the same restriction as the earlier evidence.

21. [66]

    On the evidence, the plaintiffs did nothing to follow up Mr Gulliver’s claims by making any inquiries of Ms Gulliver. All of the advances were made by the defendants solely upon the generally worded and unsubstantiated claims made by the husband, save for the following inquiries which Mr Smith deposed to in his 27 June 2019 affidavit in reply to Ms Gulliver’s affidavit.

22. [67]

    Mr Smith made some additional inquiries on behalf of the plaintiffs. Insofar as the evidence of the inquiries was admitted, it included a HCF membership card in the name of Mr Gulliver showing that Mr Gulliver, Ms Gulliver and their two children were persons covered. It included at Telstra tax invoice addressed to the debtor for a telephone number that Mr Smith understood was a number associated with the Riverview property. There was also an Origin tax invoice for the supply of gas to the Riverview property in the name of the husband. That was it.

23. [68]

    The two tax invoices bear dates after the date of the factoring agreement between the second plaintiff and the debtor and Mr Gulliver.

24. [69]

    In his second affidavit, Mr Smith explained, in par 20, why he had made no enquiries of the defendant. They included that she was not a director or shareholder of the debtor. Further:

25. [70]

    This evidence was also admitted subject to the qualification that it did not prove the facts asserted.

26. [71]

    Mr Smith said explicitly that he believed the representations made by the husband and that he had no reason to doubt those representations.

27. [72]

    The evidentiary position therefore is that there is sworn and credible evidence of Ms Gulliver that she purchased the Riverview property solely in her own name using her own funds and mortgages organised by her. She had a salary sufficient to pay all mortgage payments. She accepted that her husband paid some rates in respect of the property. It may also be, unexceptionably, that the husband paid some household expenses.

28. [73]

    The plaintiffs acted solely on representations made by the husband, and did not take any steps to obtain confirmation from Ms Gulliver. More significantly, the plaintiffs did not attempt to obtain any security over the Riverview property granted explicitly by Ms Gulliver.

29. [74]

    The defendants acted on scant evidence that established no more than that Mr Gulliver may have paid some household bills in a limited way.

30. [75]

    The plaintiffs had no evidence that any joint assets of Ms Gulliver and her husband were applied in the purchase of the Riverview property. They did not even have any evidence that the husband had made any mortgage payments.

31. [76]

    As a forensic matter, over the period of more than 18 months since the plaintiffs' summons in the caveat matter was filed, the plaintiffs have taken no forensic steps, using the Court's processes, to obtain any evidence that might prove that, in any substantial way, Mr Gulliver may have made payments in relation to the Riverview property that could arguably have given rise to the creation of an equitable interest of the husband in the Riverview property.

Absence of serious questions to be tried

1. [77]

   I will now consider whether the plaintiffs have established a sufficiently serious case to be tried that their charge over Mr Gulliver’s property attaches to an equitable interest in the Riverview property, by reason of Ms Gulliver holding part of the title to that property on trust for her husband.

2. [78]

   I will start by disposing of a number of the bases of the plaintiffs' claim that a trust exists that I consider to be untenable on the evidence, even to the interlocutory standard.

3. [79]

   First, insofar as the plaintiffs allege that a resulting trust arose, I consider that the principles have been correctly stated by White J (as his Honour then was) in Shepherd v Doolan [2005] NSWSC 42 as follows:

4. [80]

   The only evidence is that Ms Gulliver purchased the Riverview property with her money and an amount borrowed by her on the security of a mortgage over her property. There is no evidence at all that Mr Gulliver provided any money for the purchase. He did not even represent to Mr Smith in any clear way that he did so. Even if the husband subsequently paid some mortgage payments, as the plaintiffs allege, those payments are not recognised as forming part of the purchase price: see Shepherd v Doolan at [27].

5. [81]

   Secondly, there is no authority supporting a principle that an interest in the property owned by one party to a marriage gradually accrues to the other party of the marriage simply by reason of the existence of the matrimonial relationship. Courts exercising family law jurisdiction may have power to make orders conferring an interest in the property owned by one party to the marriage on the other, but that interest is only created when the Court makes the order in the exercise of its jurisdiction. Equity does not recognise any interest in property owned by one party to a marriage simply by reason of the existence of the marriage. Nor does the extent of the other party's interest increase merely by reason of the duration of the marriage.

6. [82]

   The only question therefore can be whether there is a serious case to be tried that Ms Gulliver held an interest in the Riverview property on constructive trust for her husband.

7. [83]

   An aspect of the plaintiffs' claim that Ms Gulliver held the Riverview property on a constructive trust appears to be that Mr Gulliver used some part of the money borrowed from the plaintiffs, or some part of the money earned from the use of the money borrowed, for the purpose of making the payments alleged by the plaintiffs in relation to the maintenance of the Riverview property. There is not the slightest evidence that this allegation is true in fact.

8. [84]

   More significantly, in principle, it cannot matter to the question of whether payments made by Mr Gulliver gave rise to a constructive trust what the source of the monies applied by the husband was. Furthermore, it cannot improve the plaintiffs' claim that the source was money borrowed from the plaintiffs, or money earned from the use of that money. The only question can be whether the circumstances in which Mr Gulliver made payments for the maintenance of the Riverview property using his own money gave rise to a constructive trust in his favour.

9. [85]

   Both in the statement of claim in the debt proceedings, and in the plaintiffs' submissions at the hearing, they alleged no more than that the constructive trust arose simply upon the basis that Mr Gulliver made the payments for the maintenance of the Riverview property that they alleged.

10. [86]

    First, there was no positive evidence at all that Mr Gulliver made the payments alleged. A small amount of evidence that the husband made some minor contributions to family expenses is entirely insufficient.

11. [87]

    Secondly, the plaintiffs have done nothing to identify the existence of circumstances that have been accepted as a matter of equitable principle as being capable of giving rise to a constructive trust.

12. [88]

    Again, the relevant equitable principles have been comprehensively but succinctly set forth by White J in Shepherd v Doolan in the following terms:

13. [89]

    The plaintiffs have not submitted that Ms Gulliver and her husband had a common intention that the husband would have an equitable interest in the Riverview property. Nor have they suggested that there was some common endeavour between Ms Gulliver and her husband that has broken down without the fault of either. So far as the evidence suggests, the marriage between Ms Gulliver and her husband is subsisting, so the time has not even come when the husband could assert some form of constructive trust, or seek some other equitable remedy, in relation to the Riverview property.

14. [90]

    The Court cannot find that there is a serious case to be tried that the plaintiffs have a charge over an equitable interest to which Mr Gulliver is entitled in the Riverview property arising as a result of a constructive trust if the plaintiffs do not even assert facts and circumstances recognised in equitable principle as being capable of establishing the existence of a constructive trust.

15. [91]

    Consequently, I am of the view that the Court should make an order requiring the plaintiffs to withdraw the caveat over the title to the Riverview property.

Balance of convenience favours withdrawal of caveat

1. [92]

   It is appropriate, nonetheless, that the Court makes some observations concerning the balance of convenience.

2. [93]

   The plaintiffs submitted that the balance of convenience favours permitting the caveat to remain on the title, because, if it is ordered to be withdrawn, Ms Gulliver may enter into some transaction concerning the Riverview property which destroys the possibility that the plaintiffs will be able to establish a charge over an interest in the Riverview property to which Ms Gulliver’s husband is entitled. Secondly, the plaintiffs said that, notwithstanding that the caveat has been lodged against the title to the Riverview property for some 2 1/2 years, Ms Gulliver has not been able to show that she has suffered any damage as a result. Thirdly, the plaintiffs said that Ms Gulliver had not tendered any positive evidence that she had taken any step necessary to enable her to renovate the property, or to refinance her mortgage.

3. [94]

   The first, and obvious, response to the submissions is that the plaintiffs have had more than enough time, since the caveat proceedings were commenced on 18 March 2019, to prepare their claim for hearing and to have secured a hearing date. Yet the plaintiffs had to say to the Court that they could not comply with Darke J's order that the claim be determined on 16 October 2020, because they had prepared absolutely no evidence to support their claim.

4. [95]

   More significantly, however, I do not think that a registered proprietor of property such as Ms Gulliver must necessarily establish an immediate risk of damage, in order to justify the Court in ordering the withdrawal of the caveat. The question depends upon the strength of the caveator’s claim for the maintenance of the caveat, which in turn depends upon the Court's view of the likelihood that the caveator will establish, at a final hearing, the existence of the interest in the property protected by the caveat.

5. [96]

   I have found in this case that the plaintiffs have not demonstrated any likelihood of establishing the interest in the Riverview property that they claim. If that conclusion is wrong, the basis of the plaintiffs' claim is extremely weak.

6. [97]

   In such cases as this, the Court should give substantial weight to the mere fact that a registered proprietor is entitled to have the title free from any blot which interferes with their right to use the property in any way permitted by the law.

7. [98]

   This is not a case where the plaintiffs' claim is sufficiently strong that the most the Court would do is to order the plaintiffs to withdraw the caveat, to enable Ms Gulliver to refinance her mortgage, on the basis that the plaintiffs would then be permitted to lodge a further caveat to protect their unregistered interest in the Riverview property.

8. [99]

   There is force in Ms Gulliver’s submission that it is not realistic for the Court to require her to provide positive proof, in advance, of how her attempts to refinance her mortgage will be impeded by the existence of the caveat. Ms Gulliver submits that there is a real chance that potential lenders will be put off by the fact of the caveat during the course of any negotiations, and of the potential consequences of the plaintiffs prosecuting the claim against Ms Gulliver. The fact of the caveat remaining on the title is likely to lead to the situation where Ms Gulliver has to inform potential lenders that the plaintiffs claim a charge over her property to secure the amount of $313,131.27, plus an unquantified amount of interest, on the basis of an exotic constructive trust that may only be established after contentious litigation.

9. [100]

   Ms Gulliver is simply entitled in the present circumstances to be free from the statutory injunction constituted by the caveat that has created a serious blot on her title.

10. [101]

    I also accept Ms Gulliver’s submission that the caveat is defective in that it is not limited to preventing Ms Gulliver from dealing with Mr Gulliver’s alleged interest in the Riverview property: see Andrews v Wilcox [2008] NSWSC 280. The caveat prevents Ms Gulliver dealing with her interest in the Riverview property as well. That proposition highlights the fact that the plaintiffs have not, in the caveat, the summons in the caveat proceedings, the statement of claim in the debt proceedings, or at the hearing, identified the nature and extent of Mr Gulliver’s alleged interest in the Riverview property, either sufficiently or at all. That reflects the fact that, because of the insufficiency of evidence, the plaintiffs have not been able even to identify the actual extent of the interest by constructive or resulting trust that Mr Gulliver might be entitled to claim.

11. [102]

    As mentioned above, the plaintiffs acknowledged that there was a defect in the caveat by reference to the erroneous date for the factoring agreement between the second plaintiff and the debtor and Ms Gulliver’s husband.

12. [103]

    If the plaintiffs' claim had otherwise been sufficiently strong to warrant the protection of the caveat, I may have permitted the plaintiffs to lodge a new caveat pursuant to s 74O of the Real Property Act 1900 (NSW) to protect the interest that they claimed. For the reasons given above, it is not necessary for the Court to consider that course.

Orders

1. [104]

   Consequently, the orders of the Court in the caveat proceedings are:

   1. (1)

      Order that the plaintiffs forthwith take all steps necessary to cause the caveat to be withdrawn from the title to the Riverview property.

   2. (2)

      Order the plaintiffs to pay the defendant's costs of the caveat proceedings.

2. [105]

   The orders that are actually entered will contain the details necessary to perfect these orders by identifying the caveat and the title details of the Riverview property.

3. [106]

   Additionally, the following orders will be made in the debt proceedings:

   1. (1)

      Order the plaintiffs to pay the costs of the third defendant by reason of the Court being unable to hear and determine the proceedings on a final basis at the hearing fixed on 16 October 2020 by reason of the plaintiffs not being ready for the proceedings to be heard.

   2. (2)

      Order that the costs payable under Order 1 be paid on the indemnity basis.

4. [107]

   I will make further case management orders in both the caveat and the debt proceedings in due course.